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Ken Paulson, Opinion columnist Published 4:00 a.m. ET Oct. 16, 2020 | Updated 8:59 a.m. ET Oct. 16, 2020

The Supreme Court is a vital component of our democracy. Here's how the process works to nominate, confirm, and oppose a potential justice. USA TODAY

Can you imagine a U.S. Supreme Court nominee being unable to explain the Second Amendment? Or drawing a blank on the ruling in Roe v. Wade?

That would lead to cries of outrage, a 24-news cycle and in all likelihood, the withdrawal of the nomination.

But when Judge Amy Coney Barrett struggled to name all the freedoms of the First Amendment and Senator Ben Sasse (R-NEB) tried to help her out with the wrong answer, it was barely a blip on Twitter.

It began today when Sasse tossed Barrett what presumably was intended as a softball question: What are the five freedoms of the First Amendment?

Barretts response: Speech, religion, press, assembly. speech, press, religion, assembly (now counting on her hands) I dont know. What am I missing?

She turned to the wrong person for a lifeline. Sasse quickly said redress or protest.

Then came the most astonishing moment of all. A relieved Barrett said Oh, OK.

Oh, OK? Not quite.The fifth freedom is the right to petition government for redress of grievances, a guarantee close to the hearts of lobbyists. The right to protest is not one of the five freedoms, but it can be used in tandem with all of those rights.

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Dont get me wrong. Ive had the privilege to testify before a Congressional committee and Ive been interviewed live on national television. Both can be nerve-wracking experiences. If I were to do both at the same time, with my future and that of the Supreme Court at stake, Im pretty sure I would struggle to remember my middle name. Of course, if the interviewer offered up the wrong middle name, Im pretty sure I would catch that.

That said, it was a mental lapse and not the crime of the century. In the end, this isnt about a judge or a senator.

Its about the First Amendment. Its five freedoms are at the heart of the American experience, giving each of us the right to express ourselves freely and to exercise our personal faith, while providing the tools needed to keep a check on the abuse of government power.

But instead of that bundling of rights making the First an untouchable amendment, it does just the opposite. The First Amendment has no clout.

The news media are all in on freedom of the press. Churches and religious organizations will readily fight for freedom of religion. Support for freedom of speech tends to be based on what is being said. Assembly is a popular freedom in the abstract, unless civil unrest looms in highly visible cities. For what its worth, the right of petition is just fine.

Judge Amy Coney Barrett delivered her opening statement in her Supreme Court confirmation hearing.(Photo: AP)

The First Amendment has no single constituency, and thats a problem.

When journalists assert their right to freedom of the press, but rarely write about incursions on faith, thats a problem.

When people of faith are outraged by COVID-19 limits on church attendance and dismiss the news media as fake news, thats a problem.

When a university proclaims itself to be a marketplace of ideas and tries to limit assembly to a free speech zone, thats a problem.

When someone uses their free speech at full volume on social media, only to demand the firing of public figures who do the same, thats a problem.

Our rights to speech, press, religion, assembly and petition are embodied in the most important 45 words in American history. Those freedoms are buffeted, though, by those who choose to embrace the First Amendment selectively.

The Second Amendment poses no such problem. It is clearly about the right to bear arms, though the whole militia business muddies things up a bit. Its constituency is clear and powerful. (See the right to petition.)

Sasse followed up with a second question to Barrett about the First Amendment, asking if she knew why the five freedoms were packaged in a single amendment.

I don't know why, actually, she responded. Im sure there's a story that I don't know there about why those appeared in the First Amendment all together rather than being split up in different amendments.

And this was where the previously imprecise senator nailed it.

You don't really have freedom of religion if you don't also have freedom of assembly, Sasse explained. You don't really have freedom of speech if you can't also publish your beliefs and advocate for them. You don't really have any of those freedoms if you can't protest at times and seek to redress grievances in times when government oversteps and tries to curtail any of those freedoms.

The very best way to protect your favorite First Amendment freedom is to take a stand for all of them. That requires respecting the exercise of free expression in all its forms, even if the expression isnt to your liking. That mindset would contribute to a more civil society and more consistent support for the amendment that makes Americas ideals possible. It may also prove handy for a future Supreme Court nominee.

Ken Paulson is the director of the Free Speech Center at Middle Tennessee State University, a former editor of USA TODAY and a member of USA TODAYs Board of Contributors.

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The First Amendment has no single constituency, and thats a problem - USA TODAY

By OWEN WALSH

GREELEY, PA Guns, God and Trump.

Thousands of Second Amendment supporters turned out for the second annual Rod of Iron Freedom Festival in Pike County this past weekend. The largest open-carry festival in the country, the event was centered on the celebration of gun ownership but underpinned by politics ahead of this years General Election.

Dubbed Pennsylvanias version of Woodstock on its website, the event looked more like a rally for Donald Trump than a music festival. The presidents likeness was everywhere: on clothing, on flags, on cardboard cutouts, on 30-foot high banners, and at least once as an inflatable head.

Held behind the corporate headquarters of firearms manufacturer Kahr Arms, vendors set up booths across the grounds providing a variety of foods (from barbecue to sushi) and a variety of information (from the National Rifle Association to Preparedness Peace Survival Classes).

Some attendees shot at tyrant targets with specialty Kahr guns at a 50-foot shooting range, while others took in educational seminars. Over Saturday and Sunday, the seminars covered a range of topicsseveral focused on Marxism and communismothers covered topics like Understanding the Threat of Islam, The Leftist Attack on American Identity and What is Unique about Americas Founding Principles. A Second Amendment-themed art gallery allowed gun enthusiasts to portray their passion for firearms and conservatism through various mediums.

A slate of conservative personalities and religious pastors took the main stage over the weekend, including Amanda Suffecool and Rob Campbell, a brother-sister duo who host Eyes on the Target Radio. On Sunday, Suffecool and Campbell sat down with Frank Scavo, a Republican political candidate who unsuccessfully ran for the PA State House in 2018 to discuss the erosion of gun-owning rights throughout U.S. history. They said that the misuse of firearms by criminals had needlessly restricted the rights of all gun owners.

How do you legislate evil? Suffecool asked. You cant. But you can counteract evil with firearms, Scavo responded.

The trio also told the crowd that President Trumps Supreme Court pick of Amy Cohen Barret would be good for Second Amendment protections and that it was vital to keep Republicans in charge.

The Rod of Iron festival is directly connected to the Newfoundland-based religious groups, World Peace and Unification Sanctuary and Rod of Iron Ministries, both founded by pastor H.J. Sean Moon.

Moon, whose brother Justin Moon is the founder and CEO of Kahr Arms, has garnered national attention in recent years. In 2018, he made headlines when his church held a ceremony in which hundreds of crown-wearing worshipers clutching [unloaded] AR-15 rifles drank holy wine and exchanged or renewed wedding vows prompting a nearby school to cancel classes, soon after the school shooting in Parkland, FL took place.

Moon and his followers subscribe to a belief rooted in a passage from the Book of Revelations: and he will rule them with a rod of iron. Moon, who studied theology at Harvard University, says that this informs a religious duty to own firearms. He opened the ceremony on Saturday morning, where he said that the Bible depicts Jesus an assault weapons manufacturer and that the U.S. is under attack by radical leftists and communist China.

Gods kingdom depicts a decentralized, armed society that is in the image of the chief shepherd. The shepherds hook staff is to catch and reign in his sheep from harm, and the shepherds rod is to punish the wolves and predators that seek to kill his sheep, Moon said to the audience. In the same way, the rod of iron that is given to the believers in Christ, allows the good guys to have arms to defend the sheep, and to punish the wicked when needs be.

Attendees did not have to abide by any COVID-19 guidelines. Festival organizer Greg Noll told local media that those who wished to could social distance and wear masks, but it was not mandated.

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'Rod of Iron' firearm festival held in Greeley - The River Reporter

The Senate Judiciary Committee hearings for Judge Amy Coney BarrettAmy Coney BarrettLike Scalia, Amy Coney Barrett shares an 'originalist' view on Second Amendment Senators dial down rhetoric at Barrett hearing after 2018 Kavanaugh brawl Twitter reacts to Barrett misspeaking about approaching cases with an 'open wine': 'Me too, girl' MORE come as the Supreme Courts nascent Second Amendment jurisprudence is at an important inflection point. So far, the court has clearly held only that the Constitution protects the right to keep a handgun in ones home for self-protection. The most practically important questions that have not yet been answered have to do with carrying firearms in public. The justices have hinted that there is such a right, but they have not determined what limits on that right they will recognize, or how far legislatures may go in restricting it.

For the past 10 years, the Supreme Court has been dragging its feet by refusing to hear any cases that raise this issue. Several members of the court have protested against this inaction, and it looks as though the next justice may be able to get the court off the dime. If that turns out to be Barrett, we can expect her to provide an intelligent and faithful interpretation of the Constitution.

Such an approach is particularly important on this issue at this time because America has been experiencing an extraordinary plague of violent political unrest. Most of the riots and other forms of political violence in recent years have been connected to specific allegations of police misconduct and to broader claims about pervasive racial bias in the use of lethal force by police.

Most dramatically, the nation was swept this summer by mass protests after several incidents in which such bias was imputed to police officers who were involved in confrontations that turned violent. No one at the time could have known what mixture of truth and fiction there was in the assumptions made by those who took to the streets. Despite this uncertainty, and perhaps in part because of it, many of the demonstrations were marked by arson, looting, beatings and murders of innocent victims.

Most strikingly, some state and local governments were visibly tolerant of the rioters. Public officials discouraged or forbade the use of standard crowd-control measures, and in some cases prevented the police from taking any action to protect innocent bystanders or their property. One city has experienced nightly riots for months on end. Another simply surrendered an area within its legal jurisdiction to thugs who had begun by attacking a police station. In some cases, prosecutors were disinclined to enforce the law against individuals who had been arrested. Prominent politicians promoted the defunding of the police, and some jurisdictions took concrete steps in that direction. Violent crime spiked sharply in some places, probably in part because the police became less aggressive in enforcing the law.

Barrett was a law clerk for the late Justice Antonin Scalia, and she shares his originalist approach to constitutional interpretation. As it happens, Scalia wrote the seminal 2008 opinion inDistrict of Columbia v. Heller, which protects the right to keep a handgun in ones home. Last year, Barrett wrote a dissenting opinion in a Second Amendment case, which is even more proficient than Scalias.

InKanter v. Barr, the majority upheld a federal statute that imposed a lifetime firearms disability on a man who had been convicted of mail fraud. Barretts dissent thoroughly refuted a popular theory according to which the Founders thought the right to keep and bear arms is relinquished on conviction for any felony. She concluded that the historical evidence shows that legislatures at the time sought only to disarm classes of people who were considered dangerous.

But how much discretion should legislatures have in defining such classes? Barrett argued that a total and permanent deprivation of the right to possess arms would have to be substantially related to the prevention of violent crime, as well as closely tailored to that goal. She then showed that the governments evidence failed to demonstrate that mail fraud is a reliable predictor of future gun violence, and that the government presented no evidence that this particular convicted felon had shown any proclivity for violence.

Hellersignaled that the first places to look for the meaning of the Second Amendment are its text and the historical evidence that bears on how it was understood by those who enacted it. Barrett was faithful to that sensible teaching, as well as to the principle that definitive answers supplied by those sources are binding on the courts. But most questions wont be so easily answered. And when theyre not, judges have a great deal of discretion about the nature and degree of the burden they put on the government to justify infringements on the liberty of American citizens.

Barrett showed how to exercise that discretion by engaging in legal, rather than policy, analysis. HerKanterdissent is not the work of an ideologue. Rather, she conscientiously sought to respect what ScaliasHelleropinion called the interest balancing by the people that is reflected in the Second Amendment.

This summers civil unrest may be a prelude to a series of increasingly aggressive legislative disarmament efforts, which will call for careful and fearless review by the courts. Neither the Supreme Court nor most of the lower federal courts have recently exhibited much care or much courage in their approach to the Second Amendment. HerKanterdissent promises that a Justice Barrett would bring both of those virtues to her work, which would be good for the court, good for the Constitution, and good for American liberty.

Nelson Lund is a professor of Law at George Mason Universitys Antonin Scalia Law School.

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Like Scalia, Amy Coney Barrett shares an 'originalist' view on Second Amendment | TheHill - The Hill

Salesman Ryan Martinez holds a handgun at the Ready Gunner gun store In Provo, Utah, June 21, 2016.(George Frey/Reuters)

In my post arguing that the Founders wanted you to own AR-15, I contend that there was no mention of hunting during drafting debates over the Bill of Rights.

Professor Joseph Olson reminds me that the debates over ratification of the Bill of Rights in Pennsylvania did indeed mention hunting. (I write about this in detail in my cultural history of the gun.)

Here was the excellent suggestion offered by the Pennsylvania Ratifying Convention on the topic of arms:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.

James Madison ended up simplifying and distilling many suggestions, throwing in a comma that would be seized upon many years later. But the debate on ratification was over militias and standing armies, never over individual ownership of guns.

Hunting was likely only mentioned in the Pennsylvania convention as a precaution against English-style restrictions on ownership. The most famous example, the Game Act of 1671, made possession of a firearm by anyone unqualified to hunt (read, common men) illegal and provided a pretext for the Crown to confiscate weapons.

Many saw all of this as superfluous. Some argue that fear of the national government was overblown because there were so many guns in private hands it was unimaginable any tyrannical army could ever be more powerful than the general public. Noah Webster, writing as A Citizen of America, reasoned that the supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.

Not one person in the provisional government or at the Second Continental Congress or any delegate at the Constitutional Convention at any state ratifying convention is on the record arguing against the idea of individual firearm ownership. There is, however, a multitude of examples of leaders championing the importance of that right.

Eight of the 13 original states enshrined the right to gun ownership in their constitutions most with language more straightforward than that found in the Bill of Rights. The best was probably New Hampshires compact sentence: Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

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On the Second Amendment and Hunting - National Review

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The U.S. militia movement has long been steeped in a peculiar and unquestionably mistaken interpretation of the Constitution, the Bill of Rights and civil liberties.

This is true of an armed militia group that calls itself the Wolverine Watchmen, who were involved in the recently revealed plot to overthrow Michigans government and kidnap Gov. Gretchen Whitmer.

As I wrote in Fracturing the Founding: How the Alt-Right Corrupts the Constitution, published in 2019, the crux of the militia movements devotion to what I have called the alt-right constitution is a toxic mix of constitutional falsehoods and half-truths.

Private militias

The term militia has many meanings.

The Constitution addresses militias in Article 1, authorizing Congress to provide for organizing, arming and disciplining, the Militia.

But the Constitution makes no provision for private militias, like the far-right Wolverine Watchmen, Proud Boys, Michigan Militia and the Oath Keepers, to name just a few.

Private militias are simply groups of like-minded men members are almost always white males who subscribe to a sometimes confusing set of beliefs about an avaricious federal government that is hostile to white men and white heritage, and the sanctity of the right to bear arms and private property. They believe that government is under the control of Jews, the United Nations, international banking interests, Leftists, Antifa, Black Lives Matter and so on. There is no evidence of this.

On Oct. 8, the FBI arrested six men, five of them from Michigan, and charged them with conspiring to kidnap Whitmer. Shortly thereafter, state authorities charged an additional seven men with, according to the Associated Press, allegedly seeking to storm the Michigan Capitol and seek a civil war. Included were the founders and several members of the Wolverine Watchmen.

As revealed in the FBI affidavit accompanying the federal charges, the six men charged claimed to be defenders of the Bill of Rights. Indeed, some of the men in April had participated in rallies in Lansing, the state capital, where armed citizens tried to force their way onto the floor of the State House to protest Governor Whitmers pandemic shut-down orders as a violation of the Constitution by a tyrannical government intent upon sacrificing civil liberties in the name of the COVID-19 fight.

According to the FBIs affidavit, the conspirators wanted to create a society that followed the U.S. Bill of Rights and where they could be self-sufficient.

Militia members imagine themselves to be the last true American patriots, the modern defenders of the United States Constitution in general and the Second Amendment in particular.

Hence, the Bill of Rights and especially the Second Amendment, which establishes the right to bear arms figure prominently in the alt-constitution. It is no accident that the initial discussions about overthrowing Michigans so-called tyrannical governor started at a Second Amendment rally in June.

According to most militias, the Second Amendment authorizes their activity and likewise makes them free of legal regulation by the state. In truth, the Second Amendment does nothing to authorize private armed militias. Private armed militias are explicitly illegal in every state.

No restrictions on rights

Additional foundational principles of militia constitutionalism include absolutism. Absolutism, in the militia world, is the idea that fundamental constitutional rights like freedom of speech, the right to bear arms and the right to own property cannot be restricted or regulated by the state without a citizens consent.

The far rights reading of the First and Second Amendments which govern free speech and the right to bear arms, respectively starts from a simple premise: Both amendments are literal and absolute. They believe that the First Amendment allows them to say anything, anytime, anywhere, to anyone, without consequence or reproach by government or even by other citizens who disagree or take offense at their speech.

Similarly, the alt-right gun advocates hold that the Second Amendment protects their God-given right to own a weapon any weapon and that governmental efforts to deny, restrict or even to register their weapons must be unconstitutional. They think the Second Amendment trumps every other provision in the Constitution.

Another key belief among militia members is the principle of constitutional self-help. Thats the belief that citizens, acting on their inherent authority as sovereign free men, are ultimately and finally responsible for enforcing the Constitution as they understand it.

Demonstrating this way of thinking, the men arrested in Michigan discussed taking Gov. Whitmer to a secure location in Wisconsin to stand trial for treason prior to the Nov. 3 election. According to Barry County, Michigan Sheriff Dar Leaf a member of the militia-friendly Constitutional Sheriffs and Peace Officer Association the men arrested in Michigan were perhaps not trying to kidnap the governor but were instead simply making a citizens arrest.

Leaf, who appeared at a Grand Rapids protest in May of Gov. Whitmers stay-at-home order along with two of the alleged kidnappers, mistakenly believes that local sheriffs are the highest constitutional authority in the United States, invested with the right to determine which laws support and which laws violate the Constitution. The events in Michigan show how dangerous these mistaken understandings of the Constitution can be.

There will be more

The Wolverine Watchmen are not a Second Amendment militia or constitutional patriots in any sense of the word. If they are guilty of the charges brought against them, then they are terrorists.

The FBI and Michigan law enforcement shut down the Watchmen before an egregious crime and a terrible human tragedy unfolded. But as I concluded just last year in my book, there is little reason to think the militia movement will subside soon.

Unfortunately, I did not account for the possibility that President Trump would encourage militias to stand back and stand by, which seems likely to encourage and embolden groups that already clearly represent a threat. Expect more Michigans.

This story incorporates material from a story published on April 15, 2019 in The Conversation.

John E. Finn is a Professor Emeritus of Government at Wesleyan University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Plot to kidnap Michigan's governor grew from the militia movement's toxic mix of constitutional falsehoods and half-truths - ncpolicywatch.com